EXPLANATORY STATEMENT

Select Legislative Instrument 2005 No. 95

Issued by the Authority of the Minister for Justice and Customs

Customs Act 1901

Customs (Prohibited Exports) Amendment Regulations 2005 (No. 2)

 

Subsection 270(1) of the Customs Act 1901 (the Act) provides, in part, that the Governor-General may make regulations not inconsistent with the Act prescribing all matters which by the Act are required or permitted to be prescribed for giving effect to the Act.

Section 112 of the Act provides, in part, that the Governor-General may, by regulation, prohibit the exportation of goods from Australia and that the powers may be exercised by prohibiting the exportation of goods absolutely or by prohibiting the exportation of goods unless specified conditions or restrictions are complied with. 

The Customs (Prohibited Exports) Regulations 1958 (the PE Regulations) control the exportation of the goods specified in the various regulations and the Schedules to the Regulations. 

The purpose of the Regulations is to implement some of Australia’s obligations under United Nations Security Council (UNSC) Resolutions 1493 (2003), 1552 (2004), 1556 (2004), 1572 (2004) and 1591 (2005), relating to the export of arms and related materiel to the Democratic Republic of the Congo, Sudan, and Cote D’Ivoire.

Resolutions 1493 (2003), adopted on 28 July 2003, and 1552 (2004), adopted on 27 July 2004, in part, require States to take necessary measures to prevent the direct or indirect supply, sale or transfer, from their territories or by their nationals, or using their flag vessels or aircraft, of arms and any related materiel to all foreign and Congolese armed groups and militias operating in the territory of North and South Kivu and of Ituri, and to groups not party to the Global and All-inclusive agreement, in the Democratic Republic of the Congo.

The combined effect of Resolutions 1556 (2004), adopted on 30 July 2004 and 1591 (2005), adopted on 29 March 2005, in part, requires States to take necessary measures to prevent the supply of arms or related materiel, whether by their nationals or from their territories, to non governmental entities and individuals, including the Janjaweed, and the Parties to the N'djamena Ceasefire Agreement, including the Government of Sudan, operating in the Sudanese States of North Darfur, South Darfur and West Darfur.

Resolution 1572 (2004), adopted on 15 November 2004, in part, requires States to prohibit the supply of arms or related materiel to Cote d’Ivoire, whether from the territory of the State, or by nationals of that State.

The Regulations give effect to those UNSC Resolutions by prohibiting the exportation of arms or related matériel (other than goods listed in the defence and strategic goods list (DSGL) mentioned in regulation 13E) the immediate or final destination of which is, or is intended to be, the Democratic Republic of the Congo, Sudan or Cote d’Ivoire unless the written permission of the Minister for Foreign Affairs (the Foreign Minister) or an authorised person is produced to a Collector at or before the time of exportation.  ‘Arms or related matériel’ is defined in subregulation 2(1) of the PE Regulations to include weapons, ammunition, military vehicles and equipment, paramilitary equipment and spare parts for those goods except paramilitary equipment. 

The exportation of goods on the DSGL, which include military goods, arms, explosives and dual use technology, is subject to a separate prohibition under regulation 13E of the PE Regulations.  The Regulations will only apply in respect of arms or related material that are not on the DSGL.

In addition, the Regulations:

·     allow the Foreign Minister to authorise employees of the Department of Foreign Affairs and Trade in writing to give permission under one or more of these regulations;

·     require the Minister or authorised person to take into account Australia’s relations with other countries and Australia’s obligations under international law when deciding whether to give a permission;

·     allow a permission to state conditions and restrictions, the quantity of goods that may be exported and the circumstances in which they may be exported; and

·     allow the Foreign Minister to revoke or modify a permission in certain circumstances.

No consultation was required because the regulations merely meet an obligation of the Commonwealth under Article 25 of the Charter of the United Nations, by implementing the terms of United Nations Security Council Resolutions 1493(2003), 1552(2004), 1556(2004) and 1572 (2004).

The Regulations will commence on the day after they are registered.

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